A recent unpublished opinion by the Michigan Court of Appeals is a good reminder that deliberation is deliberation, no matter the venue.
In the recent case Markel v. Mackley, the appeals court ruled the seven-member Oakland Township Parks and Recreation Commission violated the state’s Open Meetings Act (OMA) by deliberating over and deciding matters of public policy via email.
The OMA requires public bodies to conduct their meetings, make all of their decisions and conduct their deliberations (when a quorum is present) at meetings open to the public.
A quorum is typically a majority. In this case, four members of the committee constituted a quorum. When the case first was heard, the judge ruled in favor of the four defendants, David Mackley, Colleen Barkham, Alice Tomboulian and Joseph Peruzzi.
Brad Fowler, a municipal attorney at Grand Rapids-based Mika Meyers, took an interest in the case and wrote a blog post reminding his clients to be careful in this regard.
“The trial court said there was no quorum taking place because not all four members talked in every email, but the Court of Appeals smacked that down and ruled it’s still a quorum,” he said.
“I’m sure they didn't think they were violating the Open Meetings Act, but you had four longtime members (of the commission) and three newcomers, and they were deciding how to do this or that. If you’re not aware of the OMA, you can run afoul of it pretty easily.”
Fowler said the OMA includes six exceptions under which closed sessions may occur. These include dismissal, suspension or discipline of a public employee; strategy or negotiation surrounding collective bargaining; consideration of the purchase or lease of real property; consulting with the public body’s attorney regarding pending litigation; reviewing a candidate’s application or appointment to public office if confidentiality is requested; and considering material exempt from discussion by state or federal statute.
The Court of Appeals determined none of the above applied to the email conversations, which centered on how the four members in question could decide certain commission matters as a unified front without “spy’s” (sic) listening in.
The OMA does specify “email, texting or other forms of electronic communications among members of a board or commission during the course of an open meeting that constitutes deliberations toward decision-making or actual decisions” violate the act.
But because the OMA does not precisely define what deliberation consists of, Fowler said the appeals court, in this case, turned to Black’s Law Dictionary, which called it “the act of carefully considering issues and options before making a decision or taking some action.”
“Based on the dictionary definition, they determined these four individuals had in fact deliberated,” he said.
While Fowler is not aware of any West Michigan municipalities or other government bodies being tangled up in such violations, he uses the Oakland Township case as a solemn reminder to his clients.
“We advise our municipal clients to be careful. If you’re in a room together with a quorum present and (municipal matters) come up, you have to be careful with what you’re discussing.”
Although this opinion is unpublished — meaning it’s not available for citation as precedent — Fowler said it underscores the need for townships and public bodies to make sure their public officers understand the OMA, especially as a new generation steps forward.
“It goes from small municipalities all the way up to large legislative bodies,” he said. “Some people may be aware and some may not be.”